The Political Turn in American Administrative Law: Power, Rationality, and Reasons

By Short, Jodi L. | Duke Law Journal, May 2012 | Go to article overview

The Political Turn in American Administrative Law: Power, Rationality, and Reasons


Short, Jodi L., Duke Law Journal


ABSTRACT

Reason giving is central to U.S. administrative law and practice. Traditionally, courts and scholars alike have located both the constraining and the legitimating force of reasons in the constraining and legitimating force of Reason, or rationality, but several recent developments signal a political turn in understandings of administrative justification. First, in upholding the decision of the Federal Communications Commission (FCC) to penalize broadcasters for televising "fleeting expletives" in the Fox Television case, the U.S. Supreme Court signaled the diminished importance of reasoned administrative justification and a broadened acceptance of political justifications for changes in agency policy. Second, motivated by a gathering movement to reconceptualize the legitimacy of administrative agencies in terms of their political--and specifically, their presidential--accountability, prominent administrative-law scholars advocate approaches to arbitrary-and-capricious review that would encourage or require agencies to articulate explicitly the political reasons for their actions.

This Article takes seriously the challenges to the rationalist reason-giving paradigm posed by political reason-giving models, but it categorically rejects their urge to renovate administrative law's fundamental commitment to reasoned justification. Instead, it develops a new theoretical framework that sees reasoned justification as a constraint embodied not in doctrine or politics, but in the way that law and political control structure the organizational characteristics and social interactions of agencies. Drawing on this framework, the Article critiques models of political reason giving for undermining the social and organizational structures that shape and constrain what agencies do and for failing to offer a coherent alternative theory of administrative reason giving. The Article concludes by arguing more broadly that reform projects must consider the institutional dimensions of agency constraint and think more deeply about what kinds of agencies they would create.

TABLE OF CONTENTS

Introduction
  I. The Prevailing Account of Administrative Reason Giving
     A. Arbitrary-and-Capricious Review Doctrine
     B. Rationalist Theories of Reason Giving
 II. The Political Turn in Administrative Reason Giving
     A. The Court's Political Turn?
     B. The Political Turn in Legal Scholarship
III. Theorizing Political Reason Giving
     A. Presidential-Control Theory
        1. Different Strands of Presidential-Control Theory
        2. Presidential-Control Theory and Political Reason Giving
     B. Information-Disclosure Theory
        1. Disclosure of Political Reasons Is Unlikely To
           Change Behavior
        2. Disclosure of Political Reasons Is Unlikely To
           Reveal High-Quality Information
        3. Disclosure of Political Reasons May Have Unintended Costs
        4. Signaling as an Alternative to Disclosure
 IV. Toward a Sociological Theory of Reason Giving
     A. Reason Giving Constitutes Agencies as Organizations
        1. Structural Mechanisms That Shape and
           Constrain Organizations
        2. Deference Doctrine and the Organizational Structure
           of Agencies
     B. Reason Giving Structures Interactions Among Legal
        and Political Institutions
        1. The Sociology of Reason Giving
        2. Reason Giving and Interbranch Status Hierarchy
Conclusion

INTRODUCTION

Reason giving is central to U.S. administrative law and practice. Courts and legislatures require agencies to support their actions with reasons, and administrative-law scholars theorize the practice of reason giving as central to constraining and legitimating administrative agencies. Traditionally, courts and scholars alike have located both the constraining and legitimating force of reasons in the constraining and legitimating force of Reason, or rationality, but several developments signal a shift in this understanding. …

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